In a Risk Alert, the SEC Office of Compliance Inspections and Examinations ("OCIE") provided information on a series of examination initiatives being conducted on industry practices and regulatory compliance of mutual funds and exchange-traded funds ("ETFs") (collectively, the "funds"). The OCIE is interested in how the operation of these funds may impact retail investors.
The OCIE said it is investigating the following funds and advisers:
- index funds that track custom-built indexes;
- smaller ETFs and/or ETFs with little secondary market trading volume;
- mutual funds with higher allocations to certain securitized assets;
- funds with aberrational underperformance relative to their peer groups;
- advisers who are relatively new to managing mutual funds; and
- advisers who provide advice both to mutual funds and to private funds that (i) have similar strategies or (ii) are managed by the same portfolio managers.
The OCIE stated that it is evaluating whether the advisers' and funds' policies and procedures are designed to address risk and conflicts. The OCIE said it will examine disclosures and how the funds assess portfolio management compliance, and fund governance.
Commentary
It should be expected that the SEC will look closely at any situation where a public fund underperformed a private fund or managed account with a generally similar strategy. Any adviser who is managing clients that fit that description should carefully consider the reasons for the difference in performance.
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